In Re Baby
2014 Tenn. LEXIS 642
| Tenn. | 2014Background
- Intended Parents (Italian citizens) contracted with Tennessee residents J.J.E. (Surrogate) and her husband for a traditional surrogacy (surrogate's egg + Intended Father’s sperm); contract provided surrogate would relinquish the child at birth. All parties, with counsel for Intended Parents, signed the agreement and later filed a joint petition in juvenile court to declare parentage, ratify the surrogacy agreement, award custody to Intended Parents, and terminate surrogate’s parental rights.
- A juvenile court magistrate entered a consent order (17 days before birth) declaring the Intended Father the legal father, terminating any parental rights the surrogate might claim, and awarding custody to the Intended Parents effective at birth.
- After birth, the surrogate briefly nursed and then moved to vacate the consent order, set aside the surrogacy contract, and seek custody; the magistrate and juvenile court denied relief and the Court of Appeals affirmed. The Tennessee Supreme Court granted review.
- The Court analyzed whether Tennessee public policy bars enforcement of traditional surrogacy contracts; whether juvenile court had jurisdiction over paternity, custody, and termination; and whether the prebirth judicial termination of the surrogate’s parental rights complied with statutory procedures.
- Holding: traditional surrogacy contracts are not per se against Tennessee public policy, but (1) contract terms cannot circumvent statutory procedures for establishing parentage and terminating parental rights, (2) compensation cannot be contingent on surrender/termination and must be limited to reasonable pregnancy/birth-related expenses, and (3) courts must make independent best-interest custody determinations. The Court vacated the portion of the order that terminated the surrogate’s parental rights, affirmed other rulings, and remanded for visitation and child support determinations.
Issues
| Issue | Surrogate's Argument | Intended Parents' Argument | Held |
|---|---|---|---|
| Enforceability of traditional surrogacy contracts / public policy | Traditional surrogacy contracts violate public policy and statutes (e.g., adoption/anti–baby-selling provisions) | Surrogacy contracts are enforceable; statute is neutral — parties may contract subject to limits | Traditional surrogacy contracts are not per se void; enforceable subject to limits (no contingency pay for surrender/termination; reasonable expense-only compensation; cannot bind court on best-interest or circumvent termination statutes) |
| Whether contract can terminate surrogate’s parental rights prebirth | Contract and prebirth consent order purported to terminate rights before birth — surrogate says invalid because statutory termination procedures not followed and she lacked counsel | Intended Parents argue surrogacy statute and consent order sufficed to terminate rights prebirth | Prebirth contractual termination of a traditional surrogate’s parental rights is unenforceable; termination must follow statutory procedures (surrender, parental consent to adoption, or involuntary termination) |
| Juvenile court subject-matter jurisdiction over paternity, custody, termination | Juvenile court lacked jurisdiction because surrogacy statute sits in adoption chapter and adoption jurisdiction is chancery/circuit | Juvenile court had jurisdiction to adjudicate paternity and initial custody; termination requires statutory basis | Juvenile court had jurisdiction to determine paternity and initial custody under Tenn. Code Ann. §§ 36-2-307 and 36-2-311; no jurisdictional basis supported the prebirth termination order, so that portion is vacated |
| Custody / best-interest inquiry | Contract terms purported to assign custody at birth, but surrogate argued court failed to make proper best-interest findings | Intended Parents argued court properly considered contract and parties’ intent and found custody award in child's best interest | Courts are not bound by private contracts on best-interest issues; court must independently apply Tenn. Code Ann. § 36-6-106, though contract terms may be considered as relevant factors; here custody award affirmed |
Key Cases Cited
- In re Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988) (traditional surrogacy contract held contrary to public policy under NJ law)
- Surrogate Parenting Assocs., Inc. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209 (Ky. 1986) (upholding surrogacy arrangement against baby‑selling statute challenge)
- In re F.T.R., 349 Wis. 2d 84, 833 N.W.2d 634 (Wis. 2013) (permitting enforcement of traditional surrogacy contracts except where they conflict with termination statutes; courts should preserve agreements where possible)
- In re C.K.G., 173 S.W.3d 714 (Tenn. 2005) (discussing parentage in assisted‑reproduction contexts and treating surrogacy statute as neutral)
- In re Angela E., 303 S.W.3d 240 (Tenn. 2010) (describing statutory procedures and safeguards required for termination of parental rights)
- Tuetken v. Tuetken, 320 S.W.3d 262 (Tenn. 2010) (parents may not bind courts by private agreement on child’s best interests)